State v. Brar

REVIEW
OF A DECISION OF THE COURT OF APPEALS Reported at 371 Wis.2d
564, 884 N.W.2d 535 (2016 - Unpublished)

Circuit
Dane (L.C. No. 2014CT776) John W. Markson Judge

For
the defendant-appellant-petitioner, there were briefs by
Tracey A. Wood, Sarah M. Schmeiser, and Tracey Wood &
Associates, Madison, and an oral argument by Sarah M.
Schmeiser.

For
the plaintiff-respondent, there was a brief by David H.
Perlman, assistant attorney general, and Brad D. Schimel,
attorney general, and an oral argument by David H. Perlman.

PATIENCE DRAKE ROGGENSACK, C.J.

¶1
We review an unpublished decision of the court of
appeals[1] affirming the conviction of Navdeep Brar
(Brar) for operating while intoxicated, third offense in
violation of Wis.Stat. § 346.63(1) (a) (2014-15)
[2] and
an order of the circuit court denying Brar's motion to
suppress the results of a blood test.[3]

¶2
Brar moved to suppress the results of a blood test on the
grounds that it was an unconstitutional search. Specifically,
he argued that he did not consent to having his blood drawn,
and therefore, the officer was required to obtain a warrant.
The circuit court denied Brar's motion and found that
Brar had consented. On appeal, Brar argues that, even if he
had consented, his consent was not given voluntarily.

¶3
We conclude that the circuit court's finding that Brar
consented to the blood draw was not clearly erroneous.
Additionally, we conclude that Brar's consent was
voluntary. Accordingly, we affirm the decision of the court
of appeals.

I.
BACKGROUND

¶4
A City of Middleton police officer stopped Brar for driving
over the speed limit. During the stop, the officer conducted
field sobriety tests, which Brar failed. Brar then submitted
to a preliminary breath test and blew a .19. As a result,
Brar was arrested.[4]

¶5
After arresting Brar, the officer transported him to the
police department, where the officer read Brar the
"informing the accused form." While being read the
form, Brar repeatedly interrupted the officer with questions
or comments related to the form. As part of "informing
the accused" process, the officer asked Brar to submit
to a chemical evidentiary test. The precise words Brar said
in response are disputed. However, the officer thought Brar
provided an affirmative response, and therefore believed that
Brar agreed to submit to a blood draw.

¶6
After agreeing to submit to an evidentiary test, Brar asked
several questions. One of these questions was what kind of
test would be conducted, and the officer responded he would
conduct a blood draw. Brar then asked the officer if he
needed a warrant to conduct a blood draw. In response to this
question, the officer shook his head as if to respond no,
indicating that he did not need a warrant.

¶7
Brar was taken to a hospital where his blood was drawn. The
test results showed that Brar's blood alcohol content was
.186, well above the legal limit to operate a vehicle. Brar
was charged with operating while intoxicated, third offense
in violation of Wis.Stat. § 346.63(1) (a) and operating
a motor vehicle with a prohibited alcohol concentration in
violation of § 346.63(1) (b) .

¶8
Brar moved to suppress the results of the blood test. The
circuit court held a hearing to determine whether Brar had
consented to the blood draw.

¶9
At the hearing, the officer testified that Brar responded
"of course" in response to the question "Will
you submit to an evidentiary chemical test of your
blood?" According to the officer, Brar then gave "a
statement similar to he didn't want to have his license
revocated." As a result, the officer believed that Brar
had consented to the blood draw. Moreover, the officer
testified that Brar did not resist or hesitate to give blood
once he was transported to the hospital.

¶10
The circuit court found that Brar had consented to a blood
draw. The circuit court relied on the testimony of the
officer, which the court found credible. And, the circuit
court stated that nothing in the audiovisual recording was
inconsistent with the officer's testimony; specifically,
that the circuit court heard Brar say "of course, "
which corroborated the officer's testimony. For these
reasons, the circuit court denied Brar's motion to
suppress.[5] After the circuit court denied the motion,
Brar entered a no contest plea to operating while
intoxicated, third offense in violation of Wis.Stat. §
346.63(1) (a) .

¶11
The court of appeals affirmed the circuit court's denial
of Brar's motion to suppress. First, the court determined
that the circuit court's finding that Brar consented to
have his blood drawn was not clearly erroneous. Next, the
court concluded that Brar's consent was voluntary. The
court reasoned that the officer was correct in shaking his
head no to indicate he did not need a warrant because Brar
had already consented.

¶12
This court granted Brar's petition for review, and we
affirm the court of appeals.

¶17
It is well-established that consent "may be in the form
of words, gesture, or conduct." Phillips, 218
Wis.2d 180, ¶24; see also State v. Tomlinson,
2002 WI 91, ¶37, 254 Wis.2d 502, 648 N.W.2d 367;
United States v. Hylton, 349 F.3d 781, 786 (4th Cir.
2003) ("Consent may be inferred from actions as well as
words."). Through conduct, an individual may impliedly
consent to be searched. United States v. Lakoskey,
462 F.3d 965, 973 (8th Cir. 2006), as amended on reh'g
(Oct. 31, 2006) ("Voluntary consent may be. . .
implied."); United States v. Wilson, 914
F.Supp.2d 550, 558 (S.D.N.Y. 2012) ("Consent may be
granted either explicitly or implicitly." (citation
omitted)); see also Morgan v. United States, 323
F.3d 776, 781 (9th Cir. 2003) (reasoning, "a warrantless
search of a person seeking to enter a military base may be
deemed reasonable based on the implied consent of the person
searched"); State v. Hanson, 34 P.3d 1, 5 (Haw.
2001), as amended (Nov. 7, 2001) ("[E]ven in the absence
of an express indication, implied consent to an airport
security search may be imputed from posted notices.").

¶18
Consistent with these principles, "consent to a search
need not be express but may be fairly inferred from
context." Birchfield v. North Dakota, 136 S.Ct.
2160, 2185 (2016). Therefore, "a search may be lawful
even if the person giving consent does not recite the
talismanic phrase: 'You have my permission to
search.'" United States v.
Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981).

¶19
Prior cases from the court of appeals could be read as
casting doubt on the maxim that a person may consent through
conduct or by implication. For example, the court of appeals
in Padley reasoned that consent that arises under
Wisconsin's implied consent law is different from consent
that is sufficient in and of itself under the Fourth
Amendment. State v. Padley, 2014 WI.App. 65,
¶25, 354 Wis.2d 545, 849 N.W.2d 867. Specifically, the
court reasoned that "actual consent to a blood draw is
not 'implied consent, ' but rather a possible result
of requiring the driver to choose whether to consent under
the implied consent law." Id. This reasoning
implies a distinction between implied consent and consent
that is sufficient under the Fourth Amendment. Such a
distinction is incorrect as a matter of law.[8]

¶20
Stated more fully, and contrary to the court of appeals'
reasoning in Padley, consent can manifest itself in
a number of ways, including through conduct. Cf. Florida
v. Jardines, 133 S.Ct. 1409, 1415-16 (2013);
Marshall v. Barlow's, Inc., 436 U.S. 307, 313
(1978) . The use of the word "implied" in the idiom
"implied consent" is merely descriptive of the way
in which an individual gives consent. It is no less
sufficient consent than consent given by other means.

¶21
An individual's consent given by virtue of driving on
Wisconsin's roads, often referred to as implied consent,
is one incarnation of consent by conduct. Wis.Stat. §
343.305(2) (An individual who "drives or operates a
motor vehicle upon the public highways of this state ... is
deemed to have given consent to one or more tests of his or
her breath, blood or urine.") . "By reason of the
implied consent law, a driver . . . consents to submit to the
prescribed chemical tests."[9]State v. Neitzel,
95 Wis.2d 191, 193, 289 N.W.2d 828');">289 N.W.2d 828 (1980); see also State
v. Reitter, 227 Wis.2d 213, 225, 595 N.W.2d 646');">595 N.W.2d 646 (1999)
("The implied consent law provides that Wisconsin
drivers are deemed to have given implied consent to chemical
testing as a condition of receiving the operating
privilege."). And, as a plurality of the Supreme Court
explained in Missouri v. McNeely, 133 S.Ct. 1552,
1566 (2013), "all 50 States have adopted implied consent
laws that require motorists, as a condition of operating a
motor vehicle within the State, to consent to BAC testing if
they are arrested or otherwise detained on suspicion of a
drunk-driving offense." The "consent" to which
this court in Neitzel and the Supreme Court in
McNeely refer is consent sufficient under the Fourth
Amendment-not some amorphous, lesser form of consent.
See, e.g., People v. Hyde, 93 P.3d 962');">393 P.3d 962,
968 (Colo. 2017) ("Hyde's statutory consent also
satisfied the consent exception to the Fourth Amendment
warrant requirement. This conclusion flows from recent
Supreme Court precedent.").

¶22
Furthermore, the Supreme Court's assertion that an
individual's consent to a search under the Fourth
Amendment "may be fairly inferred from context" was
given with specific reference to an implied consent law.
Birchf ield, 136 S.Ct. at 2185 (reasoning,
"consent to a search need not be express but may be
fairly inferred from context. . . . Our prior opinions have
referred approvingly to the general concept of
implied-consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to
comply."). Of course, the "context" to which
the Supreme Court was referring was an individual driving on
the roads of a state that had enacted an implied consent law.

¶23
Therefore, lest there be any doubt, consent by conduct or
implication is constitutionally sufficient consent under the
Fourth Amendment.[10] We reject the notion that implied
consent is a lesser form of consent. Implied consent is not a
second-tier form of consent; it is well-established that
consent under the Fourth Amendment can be implied through an
individual's conduct.[11]

¶24
When we are asked to affirm a finding that consent was given,
whether express or implied, we also must determine whether
the consent was voluntary. See generally United States v.
Griffin, 530 F.2d 739, 743 (7th Cir. 1976) ("Once
the existence of a consent by conduct is determined, its
voluntariness must be examined."). Only voluntarily
given consent will pass constitutional muster.
Schneckloth, 412 U.S. at 222. "Consent is not
voluntary if the state proves 'no more than acquiescence
to a claim of lawful authority, '" State v.
Artie, 2010 WI 83, ¶32, 327 Wis.2d 392, 786 N.W.2d
430 (quoting Bumper v. North Carolina, 391 U.S. 543,
548-49 (1968)), or if the consent was the product of duress
or coercion by law enforcement. Schneckloth, 412
U.S. at 227.

¶25
There is no single fact, the absence or presence of which,
determines whether consent was voluntarily given.
Id. at 226. Rather, in order to determine whether
consent was voluntarily given, the totality of the
circumstances of each individual case must be examined.
Id. at 233. In examining the totality of the
circumstances, "we look at the circumstances surrounding
the consent and the characteristics of the
defendant."[12]Artie, 327 Wis.2d 392, ¶33
(citing Phillips, 218 Wis.2d at 197-98). Even in
implied consent cases, we consider the totality of the
circumstances at the time of the blood draw to determine if
an individual's previously-given consent continues to be
voluntary at that time.

¶26
The State has the burden of proving that the consent was
freely and voluntarily given. Schneckloth, 412 U.S.
at 222. However, the State need not demonstrate that consent
was given knowingly or intelligently. See id. at 241
("Nothing, either in the purposes behind requiring a
'knowing' and 'intelligent' waiver of trial
rights, or in the practical application of such a requirement
suggests that it ought to be extended to the constitutional
guarantee against unreasonable searches and seizures.");
see also id. at 235 ("Our cases do not reflect
an uncritical demand for a knowing and intelligent waiver in
every situation where a person has failed to invoke a
constitutional protection.") .

¶27
Contrary to Supreme Court precedent, decisions from the court
of appeals have required the State to prove consent was given
knowingly and intelligently. See, e.g.,
Padley, 354 Wis.2d 545, ¶64 (reasoning there
must be "clear and positive evidence the search was the
result of a free, intelligent, unequivocal and specific
consent" (internal quotations omitted)); State v.
Giebel, 2006 WI.App. 239, ¶12, 297 Wis.2d 446, 724
N.W.2d 402; see also Neitzel, 95 Wis.2d at 201. The
Supreme Court in Schneckloth rejected precisely this
requirement. As we interpret our constitution consistent with
the Fourth Amendment, we withdraw any language from these
cases that requires that consent to a search be given
knowingly or intelligently.

C.
Application to Brar

¶28
In the present case, we must determine whether Brar
consented, and if he did, whether his consent was voluntary.

¶29
First, Brar consented under Wisconsin's implied consent
law. He availed himself of the roads of Wisconsin, and as a
result, he consented through his conduct to a blood draw.
Wisconsin Stat. § 343.305(2) (an individual who
"drives or operates a motor vehicle upon the public
highways of this state ... is deemed to have given consent to
one or more tests of his or her breath, blood or
urine.") . Any analysis of a driver's consent under
Wisconsin's implied consent law must begin with this
presumption.

¶30
Aside from Brar's consent under the implied consent law,
the circuit court found that Brar consented by his responses
to the officer's questions.[13] The circuit court
discussed an audiovisual recording of the officer's
interaction with Brar as well as the officer's testimony.
The evidence supports the circuit court's finding, and we
conclude it was not clearly erroneous.

¶31
The officer testified that Brar responded "of
course" in response to the question "Will you
submit to an evidentiary chemical test of your blood?"
According to the officer, Brar then gave "a statement
similar to he didn't want to have his license
revocated." As a result, the officer believed Brar
affirmatively agreed to the blood draw.

¶32
The circuit court found the officer's "testimony to
be credible, that Mr. Brar said, when asked more than once,
the officer said I need to know, I need you to answer yes or
no, will you submit to the test? Mr. Brar said, of course, he
would submit. And the officer said that Mr. Brar said,
because he didn't want to have his license revoked, or
words to that effect." A circuit court's finding of
fact that is based on the credibility of a witness is a
persuasive factor in assessing whether the finding is clearly
erroneous. See Wis.Stat. § 805.17(2)
("Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity
of the trial court to judge the credibility of the
witnesses.") . And, we have no reason to question the
veracity of the officer's testimony in the present case.

¶33
Moreover, the circuit court found, and we agree, that the
audiovisual recording of the interaction corroborates the
testimony of the officer. Nothing in the recording rebuts the
officer's testimony as to Brar's statements. Indeed,
the officer's testimony that Brar said "of
course" and then something to the effect of "I do
not want my license revoked" is supported by the
recording.

¶34
Accordingly, Brar first consented through his conduct;
specifically, he consented by driving on the roads of
Wisconsin. The circuit court found he later re-affirmed his
consent when he was given the statutory opportunity to
withdraw consent at the officer's reading of the
Informing the Accused form to him. Based on the officer's
testimony as corroborated by the recording of the
officer's interaction with Brar, the circuit court's
finding that Brar consented was not clearly erroneous.

¶35
Having concluded that Brar consented, we must determine
whether his consent was voluntary. We conclude that Brar
voluntarily, albeit impliedly, consented when he chose to
drive on Wisconsin roads. And, his subsequent statement to
the officer, re-affirming his previously-given consent was
likewise voluntary. Brar does not argue otherwise; in
essence, he contends that the voluntariness of his consent
dissipated sometime after he had already consented.

¶36
After consenting to the blood draw, Brar asked the officer if
he needed to obtain a warrant to draw his blood. The officer
shook his head no in response. However, the officer's
response did not vitiate the voluntariness of Brar's
consent.

¶37
After all, the officer did not need a warrant because Brar
already had consented. And, the officer was not obligated to
explain further than he did; for example, an individual need
not be informed of the opportunity to withdraw consent under
Wis.Stat. § 343.305(3) in order for consent to be
voluntary. See Schneckloth, 412 U.S. at 229
(reasoning, that requiring the State to "affirmatively
prove that the subject of the search knew that he had a right
to refuse consent, would, in practice, create serious doubt
whether consent searches could continue to be
conducted") . Even if the import of Brar's question
was unclear to the officer, "an officer need not clarify
whether an ambiguous statement is meant to withdraw otherwise
valid consent to search." See State v.
Wantland, 2014 WI 58, ¶47, 355 Wis.2d 135, 848
N.W.2d 810. Accordingly, the officer accurately responded to
Brar's question and had no obligation to supply Brar with
further information.

¶38
However, even if the officer's response to Brar's
questions were unclear, it was insufficient to vitiate
Brar's previously-given and subsequently re-affirmed
voluntary consent. The voluntariness of consent is examined
under the totality of the circumstances. And, the context in
which Brar asked whether the officer needed a warrant
suggests that Brar voluntarily consented despite the arguably
unclear nature of the officer's response. Brar's
question about a warrant was not an isolated question; Brar
asked the officer numerous questions throughout the
encounter, many of which pertained to aspects of the
Informing the Accused form. He also repeatedly lamented his
guilt. In the context of his interaction with the officer,
Brar's one question about the necessity of a warrant was
insufficient to render his consent involuntary.

¶39
Moreover, Brar was informed of his opportunity to withdraw
consent to a blood draw when the officer read him the
Informing the Accused form. The officer asked him to provide
a yes or no answer to the question of whether he would
consent to a chemical evidentiary test. Earlier, the officer
had explained the consequences of refusing a blood draw to
Brar. As a result, Brar knew that he had the option of
refusing a blood draw, yet he did not refuse. See United
States v. Mendenhall, 446 U.S. 544, 559 (1980)
(reasoning, "[because] the officers themselves informed
the respondent that she was free to withhold her consent
substantially lessened the probability that their conduct
could reasonably have appeared to her to be coercive").
And, at no point did Brar as much as suggest an unwillingness
to have his blood drawn.

¶40
Finally, Brar did not merely acquiesce to being searched. The
cases in which courts have concluded consent was involuntary
based on an individual's "mere acquiescence"
are of no relevance to this case. "[A]cquiescence causes
Fourth Amendment problems when the acquiescence is made to
claimed lawful authority to search, when no such lawful
authority exists." Johnson, 299 Wis.2d 675,
¶69 (Roggensack, J., dissenting) (citing
Bumper, 391 U.S. at 548-49). Brar asked the officer
a straightforward question: whether the officer needed a
warrant to conduct a blood draw. The officer, at that point,
answered the question accurately; he did not need a warrant
because Brar had consented. In contrast to the cases in which
courts have concluded an individual merely acquiesced to a
search, the officer here did not assert that he would conduct
a blood draw with or without Brar's consent. See
Bumper, 391 U.S. at 548 ("The issue thus presented
is whether a search can be justified as lawful on the basis
of consent when that 'consent' has been given only
after the official conducting the search has asserted that he
possesses a warrant.").

¶41
In sum, Brar's "will was [not] overborne" by
the officer. See Schneckloth, 412 U.S. at 226. After
examining the totality of the circumstances, we conclude that
Brar voluntarily consented to a blood draw.

III.
CONCLUSION

¶42
In light of the foregoing, we conclude that the circuit
court's finding that Brar consented to the blood draw was
not clearly erroneous. Additionally, we conclude that
Brar's consent was voluntary. Accordingly, we affirm the
decision of the court of appeals.

The
decision of the court of appeals is affirmed.

¶43
REBECCA GRASSL BRADLEY, J. (concurring).

I
concur with the court's mandate to affirm the decision of
the court of appeals, and I join Part I of Justice Daniel
Kelly's concurrence.

¶44
DANIEL KELLY, J. (concurring).

I join
the court's mandate and the opinion to the extent it
discusses Mr. Brar's express consent to the blood test
while he was present in the police station. I cannot join any
part of the court's discussion of implied consent because
it misunderstands how our implied consent law functions, it
says "consent" implied by law is something
voluntarily given when such a thing is impossible, it
introduces a destructive new doctrine that reduces
constitutional guarantees to a matter of legislative grace,
and it fails to properly distinguish between (a) express
consent, (b) consent implied by conduct, and (c)
"consent" implied by law. And all of this was
entirely gratuitous-as the court's own opinion
demonstrates, implied consent need have no part in our
resolution of the case. Because this last point describes
where the court's opinion should have ended, I will begin
there.

I

¶45
There was no need to march into the minefield of
"consent" implied by law.[1] Mr. Brar asked us to
review his conviction for two reasons. First, he says he did
not give express consent to chemical testing of his blood.
And second, he says he only acquiesced to the blood test
because Officer Michael Wood said he did not need a warrant
to obtain a blood sample. The presenting questions,
therefore, called for us to review what Mr. Brar said and-if
it amounted to express consent-determine whether his consent
was voluntary. State v. Artie, 2010 WI 83, ¶30,
327 Wis.2d 392, 786 N.W.2d 430');">786 N.W.2d 430 ("To determine if the
consent exception is satisfied, we review, first, whether
consent was given in fact by words, gestures, or conduct;
and, second whether the consent given was voluntary.").

¶46
We are not considering Mr. Brar's interaction with
Officer Wood in the first instance, of course. We are
reviewing the circuit court's findings of fact, which we
leave undisturbed unless they are clearly erroneous.
Phelps v. Physicians Ins. Co. of Wis., Inc., 2009 WI
74, ¶34, 319 Wis.2d 1, 768 N.W.2d 615. According to the
circuit court, Officer Wood asked Mr. Brar whether he would
submit to an evidentiary chemical test of his blood. The
record reflects that Mr. Brar said "of course, "
and that he didn't want to lose his driving privileges.
Our review revealed nothing clearly erroneous about the
circuit court's findings, and so we accepted that Mr.
Brar expressly consented to a blood test.

¶47
We promptly, and properly, dispatched Mr. Brar's argument
that his consent was not voluntary. According to Mr. Brar,
when Officer Wood told him he did not need a warrant to
conduct the blood test, he made a misrepresentation of law
sufficient to negate the voluntariness of his consent. But
Officer Wood's statement came after Mr.
Brar's consent, which made his statement correct-he
didn't need a warrant because Mr. Brar had consented to
the search. See Artie, 327 Wis.2d 392, ¶29 (One
well-established exception to the warrant requirement is a
search conducted pursuant to consent.). Thus, there was no
misrepresentation to cast doubt on the voluntariness of Mr.
Brar's consent. Mr. Brar did not argue his consent was
involuntary for any other reason, so we properly concluded
his consent was constitutionally valid.

¶48
That should have been the end of our opinion. Traditionally,
when the presenting questions resolve the matter, we declare
our treatment of the case complete at that point. See
Black v. City of Milwaukee, 2016 WI 47, ¶39 n.24,
369 Wis.2d 272, 882 N.W.2d 333, cert, denied sub nom.
Milwaukee Police Ass'n v. City of Milwaukee, 137
S.Ct. 538 (2016) ("We do not address these issues
because they are not necessary to resolve this case");
see also State v. Cain, 2012 WI 68, ¶37 n.ll,
342 Wis.2d 1, 816 N.W.2d 177 ("[A]n appellate court
should decide cases on the narrowest possible grounds."
(quoting Md. Arms Ltd. P'ship v. Connell, 2010
WI 64, ¶48, 326 Wis.2d 300, 786 N.W.2d 15)); Hull v.
State Farm Mut. Auto. Ins. Co., 222 Wis.2d 627, 640 n.7,
586 N.W.2d 863 (1998) ("As a general rule, when our
resolution of one issue disposes of a case, we will not
address additional issues.") . Experience has taught us
it is usually wise to leave peripheral questions to a future
case in which they return as dispositive issues. There are
good reasons to honor that experience. The process of
reasoning from premises to conclusion imposes a rigorous
discipline on our research, deliberation, and analysis that
is absent when we opine on matters beyond those necessary to
our judgment. The court's opinion validates the wisdom of
our tradition.

II

¶49
Not only did we boldly march into the "implied
consent" minefield, we did it blindfolded. Our implied
consent statute, Wis.Stat. § 343.305 (2013-14),
[2]
is not a model of clarity. That should have driven us to a
searching, wide-eyed perusal of the statute's language to
help us through this fraught territory. Instead, with the
benefit of just three cursory sentences addressing the
statute's terms, we announced that it provides a
real-life, constitutionally-sufficient, consent to a blood
test: "Brar consented under Wisconsin's implied
consent law. He availed himself of the roads of Wisconsin,
and as a result, he consented through his conduct to a blood
draw." Majority op., ¶29. That, however, is not
what the statute does.

¶50
The question the court answered, but did not analyze, is
whether "implied consent" actually authorizes a law
enforcement officer to obtain a sample of a driver's
blood. To discover whether it does, we must consider three of
the statute's functional components. The first addresses
itself to its eponymous subject-"consent" implied
by law (I will call this the "Implied Consent
Component"). Wis.Stat. § 343.305(2). The second
component governs a law enforcement officer's request for
a blood test (the "Test Authorization Component") .
Wis.Stat. § 343.305(3)-(4) .[3] The third covers the
consequences for refusing an officer's request for a test
(the "Penalty Component"). Wis.Stat. §
343.305(9)-(10). With but one exception that is not relevant
here, there is no operational connection between the Implied
Consent Component and the Test Authorization
Component.[4]

¶51
By its own terms, the Implied Consent Component isolates
itself from the authorization the State must obtain to
collect a sample of the driver's blood. In relevant part,
it says this:

Implied Consent. Any person who . . . drives or operates a
motor vehicle upon the public highways of this state ... is
deemed to have given consent to one or more tests of his or
her breath, blood or urine, for the purpose of determining
the presence or quantity in his or her blood or breath, of
alcohol . . . when requested to do so by a law
enforcement officer under sub. (3) (a) or (am) or when
required to do so under sub. (3) (ar) or (b) . Any such tests
shall be administered upon the request of a law
enforcement officer.

Wis.
Stat. § 343.305(2) (emphases added). This provision
creates the "implied consent, " but it
simultaneously forecasts its operational independence from
the Test Authorization Component: Operating a motor vehicle
gives rise to "deemed" consent, but the actual
blood test must be requested by the law enforcement
officer.[5]

¶52
What the Implied Consent Component forecasts, the Test
Authorization Component makes explicit-the officer must ask
the driver for permission to conduct a blood test: "Upon
arrest of a person for [operating while intoxicated] ... a
law enforcement officer may request the person to
provide one or more samples of his or her breath, blood or
urine for the purpose specified under sub. (2) ."
Wis.Stat. § 343.305(3) (a) (emphasis added). When an
officer asks a driver for permission to conduct a test, he
must recite a very specific warning. The provision
introducing the warning echoes the fact that he is asking
permission-not telling: "At the time that a chemical
test specimen is requested under sub. (3) (a), (am),
or (ar), the law enforcement officer shall read the following
to the person from whom the test specimen is
requested . . . ." Wis.Stat. § 343.305(4)
(emphases added). The statutorily-mandated warning confirms
the officer is asking permission, and the driver may say
"no" to the officer's request:

You have either been arrested for an offense that involves
driving or operating a motor vehicle while under the
influence of alcohol or drugs, or both, or you are the
operator of a vehicle that was involved in an accident that
caused the death of, great bodily harm to, or substantial
bodily harm to a person, or you are suspected of driving or
being on duty time with respect to a commercial motor vehicle
after consuming an intoxicating beverage.

This law enforcement agency now wants to test one or
more samples of your breath, blood or urine to determine the
concentration of alcohol or drugs in your system. If any test
shows more alcohol in your system than the law permits while
driving, your operating privilege will be suspended. If
you refuse to take any test that this agency
requests, your operating privilege will be revoked
and you will be subject to other penalties. The test results
or the fact that you refused testing can be used against you
in court.

If you take all the requested tests, you may choose
to take further tests. You may take the alternative test that
this law enforcement agency provides free of charge. You also
may have a test conducted by a qualified person of your
choice at your expense. You, however, will have to make your
own arrangements for that test.

If you have a commercial driver license or were operating a
commercial motor vehicle, other consequences may result from
positive test results or from refusing testing, such
as being placed out of service or disqualified.

Wis. Stat. § 343.305(4) (emphases added).

¶53
I'm not going to pretend the meaning of
"request" is an open question. We are all fluent
English-speakers here, and we know it means what it so
obviously does-it is a question, a seeking of an answer. And
when the request is for a blood sample, we know the officer
is asking permission to take it. I suppose someone might say
the statute's repeated admonition that the officer must
seek permission to take a sample is a tip of the hat to good
manners. I trust the government's agents make every
effort to be polite in their interactions with
Wisconsin's residents, so this would be a frivolous
mandate to write into a statute. Absent any textual hints
that the repeated "request" requirement is more
about etiquette than a mandate to ask permission, we
shouldn't read it that way. See State ex rel. Kalal
v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271
Wis.2d 633, 681 N.W.2d 110 ([S]tatutory interpretation
'begins with the language of the statute. If the meaning
of the statute is plain, we ordinarily stop the
inquiry.'" (quoting Seider v.
O'Connell, 2000 WI 76, ¶43, 236 Wis.2d 211, 612
N.W.2d 659)).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&para;54
So what does that mean for "implied consent"? It is
axiomatic that if one must ask for something, then one
doesn&#39;t yet have it. If the statute&#39;s "implied
consent" really is equal to a driver&#39;s voluntarily
and freely given consent (as the court claims), then all of
this "request" business is so much doubletalk. If
the court is right, then there is no need to ask because the
law says we may act as though the driver already said
"yes." So Wis.Stat. &sect; 343.305 (3) (a) would
read: "Upon arrest of a person for [operating while
intoxicated] ... a law enforcement officer may requesttell the person to provide one
or more samples of his or her breath, blood or urine for the
purpose specified under sub. (2) ." And &sect;
343.305(4) would have to read: "At the time that a
driver is told to provide a chemical test specimen
i-s-requested under sub. (3) (a),
(am), or (ar), the law enforcement officer shall read the
following to the person told to provide afrom-whom-fefee test specimen 4-s-rcqucstcd . . . ." The warning required by
&sect; 343.305(4) would need to be similarly amended to
remove the "request" language, as well as the
confirmation that the subject can tell the officer
"no." But the officer does have to ...

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